TaxTMI 
TaxTMI 
2020 (2) TMI 731
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.... in ITA No.3308/Ahd/2016 for A.Y. 2012-13. 2 The Revenue has proposed the following solitary question of law for the consideration of this Court: "Whether the Appellate Tribunal has erred in law and on facts in upholding the order of the CIT(A) deleting the penalty of Rs. 6,93,70,500/on account of on money receipts offered for taxation after being detected by the department as a result of survey action u/s.133A?" 3. It appears from the materials on record that the assessee firm is engaged in the business of construction of shops and residential lats. The assessee filed its return of income declaring total income at Rs. 28,27,20,720/. In consequent of search operation was undertaken of the Ankur Dalal Group, survey a....
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....been made by the AO. Whether, and if yes, What admission u/s 132(4) was made by partner or third party in appellant's hands has, in my considered opinion, no direct or indirect relevance in assessment of the appellant or consequent other proceedings including the penal proceedings against the appellant. As such, no such relevance statutory or otherwise has been brought out by AO. Moreover, the 'admission made in appellant's hands" u/s 132(4) has been fully honoured by the appellant as is clear from the assessment and penalty orders passed by the AO. In these facts, it completely defies comprehension as to how AO has come to even a prima facie satisfaction during proceedings u/s 143(3) that appellant has "concealed" or "furnished inaccurate"....
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....rch was on 28 / 3 / 20 12, obviously, the assessment year under appeal being A.Y. 201213 is beyond the purview of Explanation 5A. Thus, AO himself has consciously excluded the application of Explanation 5A. Relevant to mention is also that the appellant suo motu and unprompted by any notice from the AO filed the return of income u/s 139 Which came to be accepted without addition/disallowance in assessment u/s 143(3). Possibly section 271AAA would apply? Though, this possibility presently is beyond the purview of my consideration as the AO has not levied this penalty u/s 271AAA, not even recorded his satisfaction during assessment in this behalf, I do believe that the AO rightly realized that in a non-searched entity, there is no question of....
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....he Ld. AR that when for enabling the AO in levying penalty u/s 271(1)(c) on an amount already forming part of the income returned, enactment of Explanation 5A is considered necessary by the Legislature, by necessary implication, in no other circumstance can the penalty u/s 271(1)(c) be levied by the AO When no addition to income returned has been made by her. Similarly, the Ld. AO has, when confronted with the reality that it is impossible to bring the case Within the four comers of express language of 271(1)(c) [to the effect that she is supposed to be satisfied that "assessee has concealed the particulars of his income or furnished inaccurate particulars of such income", i.e. it is the real and concluded as against likely action of "conce....
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.... AO and the further fact that computation machinery as provided in Explanation 1 clearly fails. In conclusion, I find favour with each of the contention raised by the ld. AR as listed above, and and none of the contention of the AO tenable. As such, I also find that the facts of the appellant's case are squarely covered by the SC decision in Reliance Petroproducts and Jurisdictional ITAT decision in Dr. Satish Gupta (both supra), and therefore, I have no hesitation in cancelling the penalty. Accordingly, the penalty of Rs. 17,96,638/levied by the AO u/s 271(1)(c) is hereby cancelled. The appellant gets equivalent relief. The related ground succeeds." 6. The Revenue being dissatisfied with the order passed by the CIT(A) preferred appeal b....
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....away by the surmise that had the survey note taken place, the assessee would not have disclosed this income This assumption and surmises of facts are Without any he Id.AO cannot anticipate that assessee Will not disclose & particular income. There are number of judgments available on this issue where it is held that when an assessee has made a complete disclosure in the return of income and offered the admitted amount for taxation, then there is no question of concealment of income or furnishing inaccurate particulars of income so as to attract provisions of section 271(1)(c) of the Act. Hon'ble Delhi High Court in the case 01 SAS Pharmaceuticals (supra) has held that When the assessee discloses amount during action under section 133A, and ....